N.M. Admin. Code § 19.8.31.3106

Current through Register Vol. 36, No. 1, January 14, 2025

Section 19.8.31.3106 - PROCEDURE FOR ASSESSMENT CONFERENCE

A. The director shall arrange for a conference to review the proposed assessment or reassessment, upon written request of the person to whom the notice or order was issued, if the request is received within 15 days from the date of the proposed assessment or reassessment is served.

B. Conference format and timing.

(1) The director shall assign a conference officer to hold the assessment conference who shall not be the inspector signing the notice or order. The conference shall be informal in nature and not be governed by the rules for adjudicatory hearings found in 19.8.12 NMAC. The assessment conference shall be held within 60 days from the date of issuance of the proposed assessment or the end of the abatement period, whichever is later. A failure by the director to hold such conference within 60 days shall not be grounds for dismissal of all or part of an assessment unless the person against whom the proposed penalty has been assessed proves actual prejudice as a result of the delay.

(2) The director shall post notice of the time and place of the conference at his office at least five (5) days before the conference. Any person shall have a right to attend and participate in the conference.

(3) The conference officer shall consider all relevant information in the violation. Within 30 days after the conference is held, the conference officer shall either:

(a) settle the issues, in which case a settlement agreement shall be prepared by the conference officer and signed by the director and by the person assessed; or

(b) affirm, raise, lower or vacate the penalty.

(4) An increase or reduction of a proposed civil penalty assessment of more than 25 percent and more than $500 shall not be final and binding until approved by the director.

C. The conference officer shall promptly serve the person assessed with a notice of his action in the manner provided in Subsection B of 19.8.31.3105 NMAC and shall include a worksheet if the penalty has been raised or lowered. The reasons for the conference officer's action shall be fully documented in the file.

D. Settlement agreements.

(1) If a settlement agreement is entered into, the person assessed will be deemed to have waived all rights to further review of the violation or penalty in question, except as otherwise expressly provided for in the settlement agreement. The settlement agreement shall contain a clause to this effect.

(2) If full payment of the amount specified in the settlement agreement is not received by the director within 30 days after the date of signing, the director shall order the civil penalty fixed at an amount determined to be appropriate, in light of the criteria set forth in 19.8.31.3101 NMAC and relevant information received at any assessment conference.

E. The conference officer may terminate the conference when he determines that the issues cannot be resolved or that the person assessed is not diligently working toward resolution of the issues.

F. The conference officer may, if persuaded by the information presented, modify or vacate a notice of violation, with the approval of the director.

G. At formal review proceedings under 69-25A-29 NMSA 1978 of the act no evidence as to statements made or evidence produced by one party at a conference shall be introduced as evidence by another party or to impeach a witness.

N.M. Admin. Code § 19.8.31.3106

11-29-97; 19.8.31.3106 NMAC - Rn, 19 NMAC 8.2.31.3106, 9-29-2000; A, 12-31-2007